Plaintiff, a resident alien skilled in salmon fishing in the Columbia River, applied to the master fish-warden for a boat-puller’s license, pursuant to Section 135 of Chapter 105, Laws of 1921, as amended by Section 5 of Chapter 295, Laws of 1923, which provides for a license fee of one dollar for each boat-puller engaged in the taking of salmon. His application was denied upon the sole ground that he was not a citizen of the United States.
The Attorney General, appearing on behalf of the defendant fish commissioners and master fish-warden of the state, contends that under Chapter 105, Laws of 1921, as amended by Chapter 295, Laws of 1923, no person, unless he is a citizen of the United States, whether engaged in taking fish for himself or as an employee of another, can be licensed to engage in commercial salmon fishing in the public waters of the state. Plaintiff denies this and insists that under a fair construction of the statute, the statute requires only those persons who are actually engaged in commercial salmon fishing for themselves to be licensed and has no application to persons not fishing for themselves but fishing as employees only of licensed salmon fishermen.
This cause was tried in the Circuit Court for Marion County upon an agreed statement of facts filed pursuant to Chapter 13, Title II, Or. L. In effect that chapter provides that parties to a question in controversy, which may become the subject of an action at law between them in a court of record, may submit such question for the determination of such court without action by stating in writing a case containing the facts upon which the controversy depends, subscribing the same in person or by their attorneys and verifying the same by the oaths of the parties to the effect that the controversy is real and the proceeding is taken in good faith to determine the rights of the parties. It provides that “the statement shall be filed with the clerk and from the date of such filing the court shall have jurisdiction of the controversy as if the same were an action pending after a special verdict found and shall proceed to hear and determine the same accordingly.” Another statute (Section 152) provides: “A special verdict is that by which the jury find the facts only, leaving the judgment to the court.” This statement of facts, which, by statute, is given the effect of a special verdict, was subscribed by plaintiff’s attor
The statute itself contains no definition of “a boat-puller” but the statute is sufficiently comprehensive to make it unlawful for any person to engage in fishing for salmon for commercial purposеs in any of the public waters of the state unless licensed by the master fish-warden. The agreed statement of facts not only recites that the work in which plaintiff proposed to engage and for which he applied for a license was to assist in the operation of a boat and gill-net in catching salmon fish but also that an employee of a licensed gill-net fisherman engaged in assisting the owner in the operation of his boat and
Plaintiff’s next contention is that if the act is broad enough to include plaintiff and to require him to be licensed, the requirement of the statute forbidding the licensing of a person because of his alienage, is void and of no effect because in contravention of Sections 20 and 31 of Article I of the Constitution of Oregon and of the Fourteenth Amendment to the federal Constitution in that it deprives the plaintiff of an opportunity of earning his own livelihood. Section 20 of Article I provides that no law shall be passed granting to “any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” Since by the agreed statement of facts it is admitted that plaintiff is an unnaturalized foreign-bom resident of the state and not a citizen of the United States or of this state, the provisions of Section 20 of Article I can have no application to him as that applies only to citizens of the state and not to resident aliens: State v. Catholic,
Section 31 of Article I provides: “White foreigners who are or may hereafter become residents of this state shall enjoy the same rights in respect to the possession, enjoyment, and descent of property as native-born citizens,” while the Fourteenth Amendment to the federal Constitution provides : “Nor shall any state deprive any person of life, liberty or prop
The Attorney General contends that the enactment of the statute in question (it being designed to regulate fishing in the public waters of the state), was a valid exercise of the police power of the state, even though it resulted in depriving resident aliens from earning a livelihood by fishing in such waters. It has been the uniform policy of this state for many years, as evidenced by numerous legislative enactments, the validity of which, upon the grounds contended for now, have not been heretofore questioned, to limit the right to engage in commercial fishing in the public waters of the state to those only who were citizens of the United States or had declared their intentions to become such and were actual residents of the state or of the adjoining States of Washington or Idaho: See Laws 1891, p. 129; Laws 1898, Sp. Sess., p. 43, §§ 15, 16; Laws 1903, p. 219; Laws 1907, Chap. 73; Laws 1915, Chap. 188; Laws 1919, Chap. 292; Laws 1921, Chap. 105.
It is admitted to be a fact that the plaintiff is an alien friend lawfully residing in this state, and that, but for his alienage, he has all of the qualifications requisite to entitlе him to the license applied for. Although an alien and having no political rights except those expressly conferred by statute, he is entitled to the benefit of the provision of the federal Constitution that no state shall deprive him of life, liberty or property without due process of law, nor deny to him the equal protection of the laws, as well as to the protection guaranteed by the provision of Section 31 of the state Constitution above quoted. He is entitled to the same protection in all of his
The operation of this statute results in depriving the plaintiff, merely because of his alienage, of the right to earn a livelihood by engaging in the lawful occupation of commercial fishing within the state, and if the power of the state to enact this law was dependent upon and confined to the exercise of its police powers alone, we are of opinion that the statute would clearly be in violation of the provisions of the federal Constitution to which we have alluded: State v. Montgomery,
No rule of international law is more firmly established than that the territory of a sovereign state includes the lakes, seas and rivers entirely enclosed within its limits: See Wheaton, International Law (5th Eng. ed.), p. 305; 1 Wharton, International Law, § 30. While the Columbia River, forming the boundary, as it does, between the two coterminous States of Oregon and Washington, is not entirely inclosed within the limits of the state, yet each state, by mutual compact entered into between them and sanctioned by Congress (see Union Fishermen Co. v. Shoemaker,
It is also settled by the decisions of the courts, both federal and state, that the “absolute property in and dominion and sovereignty over, the soils under the tide waters in the original states were reserved to the several states, and that the new states since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original states possess within their respective borders.” Knight v. United States Land Assn.,
The right to fish in the open seas is common to the citizens of аll nations: 3 Wharton, International Law Digest, § 299. But the right to fish in the territorial waters of any state or nation, unless modified by treaty, .is vested exclusively in the inhabitants of such state or nation. The title to and ownership of the fish in the tidal waters of the State of Oregon, until caught or reduced to possession, are in the state, not in its proprietary, but in its sovereign capacity for the benefit in common of its own citizens: State v. Hume,
Since the state, in its sovereign capacity, has not only the absolute ownership in and dominion over the bed and soil which underlies the tidаl waters of the state, but of the waters themselves, subject' only to the public right of navigation, and also has in trust for its own citizens, title to and ownership of the fish in such waters, so far as they are capable of ownership while in a state of freedom, it may, through its legislative power, lawfully limit and restrict the right to fish to its own citizens and may prohibit citizens of other states from exercising the right to fish. Such legislation is not violative of any provision of the federal Constitution.
A statute of Virginia prohibited any person, not a citizen of the state, from taking оr catching oysters or shell fish in certain designated tide waters of that state and from planting oysters therein. This statute was attacked upon the ground that it violated the clause of the Fourteenth Amendment which provides: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In sustaining this statute, the court, speaking through Mr. Chief Justice Waite, said:
*371 “The principle has long been settled in this court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away. (Citing authorities.) In like manner, the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. For that purpose the State represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell,16 Pet. 410 . The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to
The fish in the public waters of the state belong to the state in trust for its citizens. The ownership is in the state, not as a proprietor, but in its sovereign capacity, as the representative and for thе benefit of all its people in common: State v. Rodman,
The fact that the statute, in its operation, prohibits the plaintiff from accepting employment from one lawfully engaged in fishing, and thereby prevents the plaintiff from earning a livelihood in that particulаr occupation, does not, we think, render the statute unconstitutional. The rights of the state in the ¿fish and in the waters from which the fish are to be taken are superior to plaintiff’s right to choose fishing for salmon in those waters for an occupation. Such an occupation is not open to an alien against the legislative will of the state, since it involves the appropriation of property belonging to the state in its sovereign capacity. The state, in prohibiting aliens from engaging in the taking of salmon fish, is dealing with the cоmmon property of the people of the state; in prohibiting citizens of other states and unnaturalized foreign-born residents from fishing in the public waters of the state, the state is, in fact, dealing with a property right of the state, and not with a mere privilege or- immunity of a citizen of another state, nor does it amount to a denial to an alien within the state of the equal protection of its laws. Under the police power of the state, the legislature may prescribe any terms or conditions reasonably necessary fоr the preservation of the fish, but in the enactment of this law the legislature was not legislating under its police powers, but under its reserved powers as the owner of the property which was the subject of the legislation and which was to be affected thereby. As such owner it was authorized to prescribe any terms or conditions upon which the property of the state might be converted into private ownership. In legislating to that end it was dealing
In State v. Catholic, supra, a statute substantially the same as the statute involved here, denying to citizens of other states the right to fish in the public waters of the state, was held to be not violative of
In Atkin v. Kansas,
As the right to fish in the public waters of a state is not a right granted or secured to aliens by the Constitution of the United States or by the Constitution of this state, the decree of the Circuit Court must be affirmed. Affirmed.